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Dale Wainwright

Supreme Court rehears Open Beaches case

Not sure it’ll be any different this time around, but at least there’s a chance.

The Texas Supreme Court appeared closely divided Tuesday during a second round of arguments in a turf battle over who controls the beach after a storm moves the vegetation line landward.

The hearing came five months after the court ruled in a 6-2 decision that the state cannot take private property for a public beach because of a sudden change to the coastline.

[…]

Justice Dale Wainwright, for one, questioned whether a beachfront property owner should reasonably expect to lose his or her land to the state because of the ever-shifting vegetation line.

He also suggested that the public right to the dry beach was too expansive.

“What is the limit on how far this easement can migrate or roll?” Wainwright asked Assistant Solicitor General Daniel Geyser, representing the state.

Geyser argued that people buy property along the coast at their own risk and with the knowledge that the rolling easement is common law.

Justice Paul W. Green went further, asking if the state thinks it’s unreasonable for property owners to build along the beach.

“Not at all,” Geyser said, “because they enjoyed the use of the property while it has not actually been swallowed by the water. It’s important to remember that if the water rises up and submerges the land, title shifts to the state. But it doesn’t mean they’re unreasonable for locating there. It’s just a risk.”

I’ve blogged about this before and I don’t know what else there is to say at this point other than I agree with the state’s position. I still don’t understand how the original ruling in this case is compatible with the constitutional amendment we passed two years ago. While I don’t expect the Supreme Court to rule differently this time, I do note that there are two Justices who were not part of that original ruling, so I suppose there is the potential for change. We’ll see how it goes.

Population and voting trends: 2004 and 2008 judicial elections

So we’ve seen how county returns changed in the Presidential election between 2004 and 2008. Obviously, there are many factors that can affect a Presidential election, even when there’s not really an active campaign going on in the state. How do things look at the judicial level, which is probably a closer reflection of party ID? To try to answer that, I compared two races for the Supreme Court, and two for the Court of Criminal Appeals: Scott Brister versus David Van Os in 2004 and Dale Wainwright versus Sam Houston in 2008; Mike Keasler versus JR Molina in 2004 and Tom Price versus Susan Strawn in 2008. My observations:

– Houston improved on Van Os’ percentage by six and a half points, going from 40.76% to 47.31%; Strawn did a bit less than five points better than Molina, 42.14% to 46.86%. (Note that both 2008 races included a Libertarian candidate, while neither 2004 race did. All percentages are based strictly on R/D vote totals only.) In doing so, Houston cut the 2004 deficit by 875,000 votes, while Strawn improved by 616,000 votes over 2004.

– One corollary to that is that Houston gained in more counties than Strawn did. There were only 28 counties in which Houston’s deficit was greater than Van Os’, with Montgomery and Parker being the places he moved backwards the most. Strawn did worse in 69 counties, adding Orange and Jefferson to the biggest loser list. Recall that there were 107 counties in which Barack Obama lost ground compared to John Kerry.

– The 20 counties in which Obama lost the most ground from Kerry differed somewhat from the counties in which Houston and Strawn combined did worse than Van Os and Molina. Counties that appeared in the former list but not the latter were:

Bowie: Obama’s deficit increased by 3436 votes; Houston gained 1303 while Strawn lost 867.
Galveston: -3082 for Obama, +2720 for Houston, and -1307 for Strawn.
Jasper: -1488 for Obama, +866 for Houston, and -656 for Strawn.
Liberty: -1416 for Obama, +1185 for Houston, and +155 for Strawn.
Harrison: -1385 for Obama, +530 for Houston, and -11 for Strawn.
Johnson: -1280 for Obama, +2745 for Houston, and +2005 for Strawn.
Henderson: -1239 for Obama, +1076 for Houston, and +427 for Strawn.
Tyler: -1094 for Obama, +501 for Houston, and -260 for Strawn.
Van Zandt: -1075 for Obama, +656 for Houston, and +178 for Strawn.
Lamar: -993 for Obama, +2185 for Houston, and +1208 for Strawn.

Obviously, the worst 20 counties for Houston and Strawn were not identical to those for Obama, but I did not find any examples where Houston and Strawn combined to lose votes while Obama gained them.

The ten best counties for Houston and Strawn:

County Brister W'wright Change Van Os Houston Change Dem net ================================================================== FORT BEND 87,872 96,887 9,015 66,748 95,069 28,321 19,306 DENTON 132,244 138,359 6,115 56,112 86,738 30,626 24,511 COLLIN 165,017 167,840 2,823 64,159 100,302 36,143 33,320 HIDALGO 39,076 32,270 -6,806 60,122 87,197 27,075 33,881 EL PASO 62,780 50,627 -12,153 93,239 118,844 25,605 37,758 TRAVIS 142,841 127,796 -15,045 190,168 228,493 38,325 53,370 BEXAR 234,526 222,471 -12,055 212,415 260,152 47,737 59,792 TARRANT 327,136 320,585 -6,551 201,026 266,375 65,349 71,900 DALLAS 328,697 280,688 -48,009 324,165 406,857 82,692 130,701 HARRIS 555,454 523,101 -32,353 464,815 577,134 112,319 144,672 County Keasler Price Change Molina Strawn Change Dem net ================================================================== WILLIAMSON 77,666 80,967 3,301 42,377 61,373 18,996 15,695 DENTON 130,850 139,868 9,018 57,294 83,774 26,480 17,462 EL PASO 58,240 53,893 -4,347 99,152 115,154 16,002 20,349 HIDALGO 35,930 33,109 -2,821 64,087 86,441 22,354 25,175 COLLIN 164,805 169,377 4,572 64,188 96,476 32,288 27,716 TRAVIS 140,473 125,335 -15,138 190,769 228,492 37,723 52,861 TARRANT 321,497 322,531 1,034 206,841 263,585 56,744 55,710 BEXAR 224,983 215,807 -9,176 220,717 267,444 46,727 55,903 DALLAS 319,890 283,343 -36,547 329,484 402,483 72,999 109,546 HARRIS 540,632 521,753 -18,879 474,278 574,945 100,667 119,546

Williamson was Houston’s eleventh-best county, with a net gain of 18,502, while Fort Bend was Strawn’s eleventh-best county, with a net gain of 13,574. Not much variance on this end, in other words.

– Finally, I said in my previous entry that if 2012 is to 2008 as 2008 was to 2004, Texas would be a tossup state at the Presidential level. That’s true, but all else being equal, the Republican candidate would still win Texas by a bit more than 200,000 votes. That same level of improvement would be more than enough to win both of these judicial races, however. Sam Houston would win by more votes in 2012 than he lost by in 2008, while Strawn would win by about 150,000 votes. Given that even Republicans think the political landscape in Texas could be quite favorable to Democratic candidates, we may see as much interest in Supreme Court and CCA nominations as we saw in Harris County this year for district and county benches. All standard disclaimers apply, of course, but keep that in the back of your mind.

Next in the series will be a closer look at the 2002 and 2006 judicial elections, which will be done in two parts. As always, your feedback is appreciated.

More on Radnofsky for AG

Barbara Radnofsky talks to Gardner Selby about her intent to run for Attorney General in 2010.

Radnofsky said Thursday she’s going to run next year for attorney general, starting with an Austin fund-raiser Tuesday featuring nine Democratic state representatives (all 74 Dems were contacted, Radnofsky said, but most may be session-swamped).

Reminded that the past three Democratic aspirants for attorney general drew no more than 44 percent of the November vote, Radnofsky replied: “You’re mired in the past.”

Radnofsky stressed research gathered last year suggesting that Texas voters are identify themselves as Democrats than Republicans. Tracking polls analyzed by the Gallup organization found that 43 percent of Texans see themselves as Democrats compared to 41 percent of Republicans.

“The face of the state has changed,” she said.

Obviously, I believe the face of the state is changing, but as I said before where we’ve mostly seen this is in the downballot races between unknown, unfunded Democrats and unknown, unfunded Republicans. A race between a Dem with some name ID and campaign resources and a non-incumbent Republican with same, which is what we may get if current AG Greg Abbott aims at a higher office, could build on that dynamic and maybe persuade a few more of those people who say they’re calling themselves Democrats to vote for one in a statewide race.

That assumes, of course, that Radnofsky or whoever the nominee is can raise the dough needed for that. She seems to be taking a step in that direction.

New-hires on her side: Fund-raising consultant Jim Cunningham of Kentucky, pollster Andre Pineda of Los Angeles and direct-mail consultant Kevin Geary, who heads the Philadelphia office of the Baughman Group. Radnofsky said she’s hunting for a TV advertising consultant.

Interesting that she’s going out of state, but when you realize there are essentially no Dem consultants here with experience winning statewide in the past decade or more, it’s not so surprising. I’ll be very interested to see how they do.

Separately, I’ve heard chatter that other Democrats could yet test the waters for AG including state Reps. Trey Martinez Fischer of San Antonio, Pete Gallego of Alpine and state Sens. Royce West of Dallas and Kirk Watson of Austin, the party’s AG nominee in 2002. Republicans in the mix could include Ted Cruz, the state’s former solicitor-general (who’s already raising money and exploring a try), state Rep. Dan Branch of Dallas and Justice Dale Wainwright of the Texas Supreme Court.

Radnofsky said she’d be happy not having a major primary opponent. Referring to the perennial Universal City candidate with a dancer’s name whom she beat in a 2006 runoff, she said: “If the only opponent ended up being Gene Kelly, that’d be OK.”

Lots of new names on the might-run list; here’s some confirmation of Sen. West’s potential interest. As I said before, I’ll be perfectly happy to see contested primaries statewide, and if one of them involves a well-known figure like Ronnie Earle, so much the better. Among other things, spirited primaries will raise everyone’s profile, and will keep Dems out of the Republican primary, where some folks are considering a vote for KBH just to make sure we’re in the final days of Rick Perry’s reign. I understand BAR’s preference, but I say come one, come all. As long as we fill out the ticket with quality candidates, it’s all good.